‘Our constitution has not failed us…’

It’s okay to question the constitution, but it must not become collateral damage, says political analyst, Judith February, who delivered the keynote address on Thursday evening at the annual Frederik Van Zyl Slabbert honorary lecture at the Stellenbosch Institute for Advanced Studies.

In a wide-ranging presentation on the state of our democracy, Ms February commented on our current political milieu, also reflecting on the impact of our past on the present, and potentially on our future.

“Although our transition from apartheid to democracy is often heralded as peaceful and free, albeit it in institutional and procedural terms, there have been lingering problems,” she said, citing the triple evils of poverty, inequality and unemployment, about which President Jacob Zuma is “inclined to be glib”.

The central proposition of her lecture affirmed the primacy of the constitution, which she said “is much maligned, even by the ANC which fought for its adoption, and was also deeply involved in its writing.”

“It is the framework around which everything else pivots. It is both aspirational and transformational,” she said, “and it provides a broad framework for bringing about socio-economic equality.”

She added that a constitution can only be as effective as the men and women charged with implementing the rules.

“The constitution itself is increasingly contested terrain, but such attacks on the constitution are often political opportunism,” she said. “But it is partly our fault for not ensuring that there has been proper constitutional education, and that the language of rights has become popularised.”

She noted that the constitution was, in a sense, scapegoated during the recent student protests, because “we have failed to join the dots between the corruption, mismanagement and poor governance that we see, and state capture, and the failure to deliver basic services.

“State capture has consequences, after all.”

The argument I heard a lot last year, said Ms February, was something like this: “The negotiated settlement meant …. white people have everything, black people had to compromise so white people could keep just about everything and hand black people the scraps off the table.”

She characterised this as “sloppy analysis” because it did not take into account the global and political context of the time, and it doesn’t truly engage with the deeply progressive constitutional judgements handed down since 1996, but adding that it
can be compelling in a populist way.

The counter narrative she cited, propagated of late by retired constitutional Court judge Albie Sachs, is rooted in the principled leadership of the late OR Tambo, who during the struggle years was set upon constitutionalising aspects of the struggle, which was widely embraced by the ANC as a movement. “Tambo’s strategic position on the bill of rights was to protect everyone, black and white, rich and poor, and in Sachs’ words, “the constitution itself was needed as protection against arbitrariness by all leaders, and indeed, even against ourselves.”

Turning to the attacks by the ANC on the constitution and the judiciary, suggesting that the constitution had taken away power from the executive, and that the judiciary had become too powerful, Ms February
noted that by then “Zuma’s venality was on display and increasingly matters involving the president were being taken to court, so no surprises then that the ANC and Zuma himself have launched attacks on our courts.”

Turning to the future, Ms February posed the question, despite the crises which we face, how do we transform our society in a meaningful way and go from a society that is becoming, to one that is comfortable in its own skin, cautioning that transformation is often used as a proxy to advance narrow political interests.

“A lesson from our early years would be to try to fix the economy in some way and create sufficient trust between economic players based on an understanding that a fair wage, proper skills development and entrepreneurship should be supported.

“Importantly, some sort of shared sacrifice would be required to deal with the ravages of the past.

“Our trust deficit was papered over by the Rainbow Discourse after 1994, and that the Truth and Reconciliation Commission never allowed us to fully deal with our past.

“The past lies between us in every debate about race and class, every disagreement about structural inequality.

“Too many vexing questions remain unanswered while the perpetrators walk around amongst us.”

In her concluding thoughts, Ms February shared her views of what we need to do to build our democracy in a post-Zuma world.

Build a culture of learning, promote proper intellectual pursuit and critical thinking, and accept that education
can help to lift people out of poverty.

Constitutional education to promote understanding of the constitution, what is is, and how it provides the important checks and balances on power.

Build a culture of accountability in which respect for, rather than deference to power, features.

Maintain an independent media because of the “connecting the dots” role which it plays in disseminating information widely.

Find structured leadership, because as our current government has shown us, where there is a lack of leadership, it has deep consequences for the future.

Promote an engaged citizenship, that questions and does the
work of democracy, driven by civic engagement, from the bottom up, and not from the top down.

“And so, the question we have to ask tonight, is what is there for us to do, and this is both an
individual and collective question for each one of us, as we
try to create a world which is more just and more equal?” she asked.